McGarity v. Comm'r of Internal Revenue (In re Estate of McGarity) , Docket No. 9434-78.
| Decision Date | 25 April 1979 |
| Docket Number | Docket No. 9434-78. |
| Citation | 72 T.C. 253 |
| Parties | ESTATE of STEPHEN B. MCGARITY, DECEASED, ROBERT J. MCGARITY and OLA JEAN MCGARITY GADRICH, EXECUTORS, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Petitioner alleged that he mailed his petition on the 90th day after respondent had mailed the statutory notice of deficiency. However, the only evidence as to the time of mailing was a certified mail receipt dated the 91st day. Held, even assuming the facts as alleged by petitioner are correct, this Court lacks jurisdiction. Drake v. Commissioner, 554 F.2d 736 (5th Cir. 1977), affg. an unreported Tax Court order, followed. G. Hughel Harrison, for the petitioner.
Mark W. Nickerson, for the respondent.
This matter is before us on respondent's “Motion to Dismiss for Lack of Jurisdiction” filed September 11, 1978. It is respondent's contention that the petition in this case was not filed within the time prescribed by section 6213(a)1 of the Internal Revenue Code of 1954.
Respondent mailed a statutory notice of deficiency to petitioner on May 10, 1978. Pursuant to section 6213(a), the taxpayer may file a petition with this Court within 90 days (or 150 days if the notice is addressed to a person outside the United States) after the notice of deficiency is mailed, not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day. The last day for timely filing a petition in this case was Tuesday, August 8, 1978, which was not a legal holiday in the District of Columbia.
Petitioner's petition was received through the mail in the Tax Court mailroom on Friday, August 11, 1978, and was stamped accordingly at 10:19 a. m. Such date was 93 days after the mailing of the notice of deficiency. At 11:48 a. m. that same day, the petition was stamped “Filed” by one of the employees in the petition section of the Court.
The only evidence as to the time the petition was mailed is a certified mail receipt bearing the Lawrenceville, Ga., postmark of August 9, 1978.
Initially, it is clear that the petition was not received by the Court within the 90-day period prescribed in section 6213(a). However, under section 7502, a petition is considered timely filed if it is mailed within the 90-day period even though the petition is received by this Court after the expiration of the 90-day period. In such a case, “the date of the United States postmark stamped on the cover in which such return * * * other document * * * is mailed shall be deemed to be the date of delivery.” For certified mail, the Secretary is authorized to provide by regulations the extent to which the postmark shall be prima facie evidence of delivery. Sec. 7502(c)(2). Section 301.7502-1(c)(2), Proced. & Admin. Regs., states:
If the document is sent by U.S. certified mail and the sender's receipt is postmarked by the postal employee to whom such document is presented, the date of the U.S. postmark on such receipt shall be treated as the postmark date of the document.
In this case, there is no question that the certified receipt bears a postmark of August 9, 1978, 91 days after respondent mailed the statutory notice of deficiency. Nonetheless, petitioner asserts that the petition was actually delivered to the post office in Lawrenceville, Ga., on August 8, 1978, a date within the 90-day period, notwithstanding the August 9, 1978, stamp on the certified mail receipt. This, he argues, should serve to give this Court jurisdiction.
However, as pointed out by respondent, petitioner's argument was squarely presented and rejected in Drake v. Commissioner, 554 F.2d 736 (5th Cir. 1977), affg. an unreported Tax Court order. In Drake, the taxpayer's attorney submitted a certified letter to the Galveston Post Office on the 90th day, but the letter was not postmarked until the following day. We held that the statutory requirement of section 6213(a) was not...
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